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Lingua Franca Legalis? a French Vernacular Legal Culture from England to the Levant

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Lingua Franca Legalis? a French Vernacular Legal Culture from England to the Levant Reading Medieval So/dies XL (2014) Lingua Franca Legalis? A French Vernacular Legal Culture from England to the Levant Ada Kuskowski Southern Methodist University The history of European law is generally written as a series of oppositions. There is the 'common law' of the Church and of university Roman law, as opposed to the various ' particular' laws divided by pohty. Within these parti cular laws, there is yet another division that is seen to form by the end of the twelfth century, the one between Engli sh Common Law and continental legal culture, whether the latter was defined as a patchwork of custom or as a unified block through the influence of the ius commune. These are not just descriptions of legal geographies; rather, these di visions are of key importance because they encode identity both in terms of intern al development and in opposition to one another. They are important, furthermore , because they not only describe the shape of medieval legal identity but they also serve to herald the form that legal culture will take in later nascent nation states. Within the fi eld of medieval studies more generally there has been a push to look beyond traditional borders to see whether and what kinds of connections can be made across traditionally assumed boundaries.' This move has been much slower to influence the writing of legal history, especially when it comes to the 'particular' or customary laws outside of the ius commune. Paul Hyams is one of few scholars who has looked at these sorts of connections, notably di scussing th e similarities in early legal-treatise writing in England and France in hi s 'The Common Law and the French Connection' and more recentl y evaluating the 'Frenchness' that underlay the constructive thinking of the earl y Common Law of England in his article 'Thinking Engli sh Law in French: The Angevins and the Common Law'.' As Hyams noted there, ' it was the French hexagon [ ... ] that set the fashions' in this time of burgeoning pol ities. pri nces interested in law, and jurists exerting themselves in developing new literatures devoted to law.] This ' French hexagon'. or the ' French global ' as others mi gh t dub it, is the subject of the present paper.' Paul Hyams, 'The Common Law and the French Connection', in Proceedings of the Battle Conference on Anglo-Norman Studies IV, 1981, cd. by R. All en Brown (Woodbridge: Boydell , 1982), pp.77-92. 2 Hyams. 'The Common Law and the French Connection'. 3 Paul R. Hyams, 'Thinking English Law in French: The Angevins and the Common Law', in Feud. Violence and Practice: Essays in Medieval Studies in Honor o/Stephen D. White ,ed. by Belle S. Tuten and Tracey L. Billado (Farnham: Ashgate, 20 I 0), pp. 175-96 (at p. 175). 4 French Global: A New Approach to Literary History, ed. by Christie McDonald and Susan Rubin Suleiman (New York: Columbia Uni versity Press, 2011). LINGUA FRANCA LEGALIS? 141 The sy mbiotic relationship between language, borders and identity generated in the enthusiasm of nineteenth-century nationalisms, and perceived as an aspect of the state in the contemporary world, does not accurately reflect the situation in medieval Europe. Borders were not as exact as they arc today, nor did they exclude and define as they do now, and language certainly was not confined to them. The limits of culture in the Middle Ages were often broadened by conquest and resettlement, and one of the consequences of this was a francophone culture that extended geographically from England, through France, into the maritime world and down into the crusader-occupied Levant. Notably, when this medievaljrancophonie, if you will, began forma li zing and textualizing its juridical notions in the second half of the thirteenth century. it was part of a wave that was abandoning Latin in favor of French as its language of expression. Of course, this move was by 'no means even or complete. As Serge Lusignan explained more generally. the move to the vernacular is one that extended from the eleventh to the fifteenth centuries and never neatly excluded Latin.5 Nonetheless, it must be noteworthy that from the English moors to the Atlantic waters and down into the sand s of Cyprus, where the displaced Kingdom of Jerusalem relocated after the crusaders lost the Holy City, various authors made the decision to describe the di spute-resolution customs of their lay courts in French. In other woras, they chose not to write in the established 'international' language of Latin, and in the case of colonial lands al so chose not to write in the language spoken by most of the inhabitants, but in French. If we draw a map of the ambit of this lingua franca legalis we see that it covers a huge swath of territory. It is not quite as large a realm as that of the ius commune, but it is large enough that we should be asking ourselves whether and to what extent we can speak of an autonomous and transnational legal culture that was francophone and customary. And if there was such a legal culture, united by vernacul ar language but not based on the territorial bounds of a specific kingdom, then what does that say about the relationship between law, language and identity in the later Middle Ages? This paper aims at setting out some preliminary ideas in relation to these questions with the intention of opening up future research considerations, first by discussing the cultural presence of the medieval jrancophonie, and then examining how it might resonate in the legal literature of the thirteenth and fourteenth centuries. 5 See generally, Serge Lusignan, La langue des rois au Moyen Age: Ie jranrais en France e! en Anglelerre (Paris: Presses Uni versilaires de France, 2004). 142 ADA MARIA KUSKOWSKI The Vernacular Turn and Medieval Francophonie Twelfth-century Europe witnessed the beginning of a great cultural transformation that saw the shift from 'a culture dominated by monastic and dynastic concerns to those of a vernacular-speaking, married, commercial and professional laity' . ~ The importance of the rise of the vernacular, both as a vehicle and a corollary of that shift, has largely been recognized and studied in a diversity of fields, from literature to diplomatics. These studies, however, generally contain themselves to the boundaries of a particular kingdom and in so doing serve to define these entities rather than see conunonalities between them. As Thomas Brunner recently noted, while the shift from Latin to the vernacular languages is one of the momentous events of the Middle Ages, studies of Europe-wide vemacularization remain in their infancy.? As Patrick Geary has shown, Latin had become the language of communication for an extreme minority by the end of the MiddleAges" By then, it had taken on an ideological role increasingly connected to the Church and the clergy and had become primarily their language, one that was seen from the outside as secret, complicated and even a tool for deception.' By the end of the thirteenth century, French had largely replaced Latin as the international language of communication and diplomacy. 'o The study of Fre~nch was eagerly recommended in various quarters due to a number of factors - the Crusades, the spread of French chivalrous culture and li terature, and the importance of France in trade, notably in the fairs of Champagne." The thirteenth century was the great watershed moment for the French vernacular. As Jan Ziolkowski remarked, there was a real 'cultural exuberance' that led to confidence in and the refinement of vernacular language and the culture it represented. '2 The result was 6 Mary Carruthers and Jan M. Ziolkowski, 'Introduction', in The Medieval Craft of Memory: An Anthology of Texts and Picture,\', ed. by Carruthers and Ziolkowski (Philadelphia: University of Pennsylvania Press, 2002), p. 24. 7 Thomas Brunner, 'Le passage aux langues vernaculaires dans les actes de la pratique en Occident' , Le Moyen Age, cxv (2009): 29-72 (at p. 29). 8 Patrick Geary, 'What Happened to Latin?', Speculum, 84 (2009): 859-873 (at p. 864). 9 Patrick Geary, Language and Power in the Early Middle Ages, Jerusalem: Historical Society of Israel (Lebanon: Brandeis University Press, 2013), pp. 58-9. This can be seen in the pithy expression 'parler en romans sans latin' which, as Geary (al p. 59) noted, meant to speak openly without obfuscation. 10 Geary, 'What Happened to Latin?' , p. 864. 11 Bernard Bischoff, 'The Study of Foreign Languages in the Middle Ages', SpecuLum, 36 (1961): 209- 224 (at p. 210). 12 Jan M. Ziolkowski , 'Latin and Vernacular Literature', in The New Cambridge Medieval History , vol.4 (c. 1024-1198), ed. by D. E. Luscombe and Jonathan Riley-Smith (Cambridge: CUP, 2003), p. 664. • LINGUA FRANCA LEGALIS? 143 not simply the registration of an oral tongue, but the constitution of the vernacular as a 'written tongue'. 13 This, in turn, permitted it to obtain the communicational competence that had been hitherto reserved to Latin, such as expressing Jaw in writing.'4 French developed into the most influential vernacular in the high and late Middle Ages. 15 As Sharon Kinoshita remarked, 'cultivated outside of the borders of the nation-state that will later lend it its name to both the language and the literature, Old French [was] extra-territorial avant La leure' . 16 This in itself was rather remarkable considering that nothing close to a French nation existed when the French vernacular appears in the twelfth century - Occitan dominated south of the Loire, the French king only controlled his small patch around the Jle-de-France, and his power was dwarfed by the most powerful French­ speaking ruler of the day, the Angevin king of England.
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